Judge: Anne Hwang, Case: 21STCV22840, Date: 2023-09-26 Tentative Ruling

Case Number: 21STCV22840    Hearing Date: February 2, 2024    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

BACKGROUND

On June 18, 2021, Plaintiffs Andrew Rosen and Julie Rosen (“Plaintiffs”) filed a complaint for negligence and premises liability. On April 12, 2022, Plaintiffs amended the complaint to add Defendant Smitty and Gentil, Inc. (“Defendant”) as Doe 1.

On August 22, 2022, Defendant filed an answer.

On September 26, 2023, the Court granted Defendant’s motion for summary judgment.

On September 28, 2023, Defendant filed and served electronically, its Memorandum of Costs (forms MC-010 and MC-011), claiming $4,432.59 in costs.

Judgment for Defendant was entered on October 24, 2023.

On November 27, 2023, Defendant served and filed notice of the entry of the order.

On November 29, 2023, Plaintiffs filed the instant motion to strike Defendant’s Memorandum of Costs, or in the alternative, Tax Costs. Defendant opposes and Plaintiffs reply.

LEGAL STANDARD

Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding. (Code Civ. Proc. section 1032, subd. (b).) Under Code of Civil Procedure section 1033.5, subd. (c)(2), allowable costs “shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.”¿Subdivision (3) requires: “Allowable costs shall be reasonable in amount.”¿“Items not mentioned in [Section 1033.5] and items assessed upon application may be allowed or denied in the court’s discretion.” (Code Civ. Proc., § 1033.5, subd. (c)(4).) There is no requirement that copies of bills, invoices, statements, or any other such documents be attached to the memorandum. Only if the costs have been put in issue via a motion to tax costs must supporting documentation be submitted. (Bach v. County of Butte (1989) 215 Cal.App.3d 294, 308.)

On a motion to tax, “[i]f the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs. Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court and its decision is reviewed for abuse of discretion. However, because the right to costs is governed strictly by statute a court has no discretion to award costs not statutorily authorized.” (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774, internal citations omitted.) “The court’s first determination, therefore, is whether the statute expressly allows the item, and whether it appears proper on its face. If so, the burden is on the objecting party to show them to be unnecessary or unreasonable.” (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131, internal citations omitted.) The objecting party does not meet this burden by arguing that the costs were not necessary or reasonable, but must present evidence and prove that the costs are not recoverable. (Litt v. Eisenhower Med. Ctr. (2015) 237 Cal.App.4th 1217, 1224; Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1557.)

DISCUSSION

As an initial matter, Plaintiffs argue the memorandum of costs was prematurely served because it was served before judgment was entered. (Motion, 4.) “A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first.” (Cal. Rules of Court, rule 3.1700(a)(1).) Here, judgment was entered on October 24, 2023, but the memorandum of costs was served on September 28, 2023. However, the premature filing of a cost memorandum is treated as a mere irregularity at best, and is not a basis for granting a motion to strike costs absent any prejudice to plaintiff. (Pamela W. v. Millsom (1994) 25 Cal.App.4th 950, 961.) Plaintiffs do not show that they suffered prejudice due to the premature filing.

Next, Defendant argues this motion is untimely because it was served on November 29, 2023, 62 days after Defendant served its cost memorandum on September 28, 2023. “Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum. If the cost memorandum was served by mail, the period is extended as provided in Code of Civil Procedure section 1013. If the cost memorandum was served electronically, the period is extended as provided in Code of Civil Procedure section 1010.6(a)(4).” (Cal. Rules of Court, rule 3.1700(b)(1).) “In the absence of an agreement, the court may extend the times for serving and filing the cost memorandum or the notice of motion to strike or tax costs for a period not to exceed 30 days.” (Cal. Rules of Court, rule 3.1700(b)(3).)

Here, fifteen days after the cost memorandum was served electronically was October 13, 2023, which was a court day.[1] Thirty days past this date was November 12, 2023. Even applying the extension, Plaintiffs’ motion is untimely since it was filed on November 29, 2023. In reply, Plaintiffs argue the Court should use its discretion to allow relief for the untimely filing under Code of Civil Procedure section 473. (Reply, 5.)

Here, Plaintiffs argue they inadvertently filed the motion late because they believed that Defendant’s memorandum was filed prematurely, before judgment was entered. “[T]he court presumably has discretion to grant relief under [Code of Civil Procedure section] 473 for ‘inadvertence’ or ‘excusable neglect’ to consider late-filed motions” to tax costs. (Douglas v. Willis (1994) 27 Cal.App.4th 287, 290.) The mandatory provision of section 473 does not apply. (See id. at 290–91.)  However, even if the Court were to grant relief, the motion to strike costs would be denied for the reasons below.

As Plaintiffs did not “recover any relief against” Defendant, Defendant is the prevailing party in this action. (Code Civ. Proc., § 1032, subd. (a)(4).) Defendant is therefore entitled to recover its costs.

Plaintiffs object to and seek to strike the following portions of Defendant’s memorandum of costs: filing and motion fees and deposition costs.

Filing and Motion Fees

Plaintiffs do not provide any evidence or argument as to why the filing or motion fees are unreasonable. Code of Civil Procedure section 1033.5(a)(1) expressly allows for filing, motion, and jury fees. The values appear reasonable on the face of the memorandum. Since Plaintiffs provide no argument or evidence, they fail to meet their burden. Accordingly, the Court denies the motion as to these costs.

Deposition Costs

Plaintiffs challenge $3,419.40 in deposition costs. Code of Civil Procedure section 1033.5(a)(3)(A) expressly authorizes costs for the “[t]aking, video recording, and transcribing” necessary depositions. Plaintiffs argue the amount is unreasonable. Looking at the face of the memorandum, the amount for depositions appears proper. Plaintiff provides no evidence or argument for why the amount is unreasonable. Therefore, the Court denies the motion as to these costs. (See County of Kern v. Ginn (1983) 146 Cal.App.3d 1107, 1113-14 [the party did not meet its burden where it submitted no affidavits in support of motion to tax costs, but merely alleged depositions were unnecessary or unreasonable].)

CONCLUSION AND ORDER

Therefore, Plaintiffs’ motion to strike costs is DENIED.

Plaintiffs shall provide notice of the Court’s ruling and file a proof of service of such.